In re J.P.S.; In re J.S.

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

9th Circuit Court-Merrimack Family Division
No. 2022-0011

IN RE J.P.S.; IN RE J.S.

Argued: October 18, 2022
Opinion Issued: February 28, 2023

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Sam M. Gonyea, attorney, on the brief and orally), for the New
Hampshire Division for Children, Youth and Families.

Law Office of Chadwick-Fricano-Weber, of Nashua (Joseph C. Fricano on
the brief and orally), for the respondent.

HICKS, J. The respondent, Mother, appeals an order of the Circuit Court
(Derby, J.) in this child abuse and neglect case brought by the petitioner, the
New Hampshire Division for Children, Youth and Families (DCYF). We affirm.

The trial court found the following facts. Mother and Father are the
biological parents of J.S. and J.P.S. J.S. was born in 2019. She was born both
prematurely and exposed to drugs Mother had taken during pregnancy.
Following DCYF intervention, Mother and Father obtained custody of J.S.

J.P.S. was born on October 7, 2021, at Mother and Father’s home.
Approximately three days after his birth, J.P.S. began showing signs of
distress. Father brought J.P.S. to Catholic Medical Center (CMC) under the so-
called “safe haven law,” see RSA ch. 132-A (2021), and stated that the child’s
mother was, or was believed to be, an intravenous drug user.

Because J.P.S’s needs were so extensive, he was transported to Boston
Children’s Hospital (BCH). After three days at BCH, J.P.S. returned to CMC,
where he was still being treated at the time of the adjudicatory hearing. He
was diagnosed with neonatal abstinence syndrome (NAS), also known as drug
withdrawal, and was treated with morphine and clonidine.

On or about October 14, 2021, DCYF filed six abuse and neglect
petitions. After the court dismissed two abuse petitions, DCYF filed two more,
resulting in the following charges and adjudications. The court entered
findings of “true” with respect to four petitions alleging neglect of J.S. and
J.P.S. by Mother and Father. The two remaining petitions alleged abuse of
J.P.S. by Father and Mother, respectively, through injuries sustained by J.P.S.
after birth, caused by Mother’s prenatal narcotics use. The court entered
findings of “not true” with respect to Father and “true” with respect to Mother.

Mother appealed, challenging the finding of abuse of J.P.S. and the
findings of neglect of both J.P.S. and J.S., and raising other alleged errors. The
only question briefed by Mother, however, relates to the finding of abuse of
J.P.S. Accordingly, we deem all other issues raised in Mother’s notice of appeal
waived. See In re M.M., 174 N.H. 281, 298 (2021) (“All issues raised in . . .
[the] notice of appeal, but not briefed, are deemed waived.”).

We will uphold the findings and rulings of the trial court unless they are
unsupported by the evidence or are legally erroneous. See In re Craig T., 144
N.H. 584, 585 (1999). “The court, which is the trier of fact, is in the best
position to assess and weigh the evidence before it because it has the benefit of
observing the parties and their witnesses.” Id. (quotation omitted).
“Consequently, our task is not to determine whether we would have found
differently; rather, we determine whether a reasonable person could have found
as the trial judge did.” Id. (quotation omitted). “We review the [trial] court’s
statutory interpretation de novo.” In re D.O., 173 N.H. 48, 52 (2020).

As Mother frames it, the issue on appeal is: “Whether the trial court
erred by including a viable fetus within the statutory definition of a child under
RSA 169-C:3(V) (2022).” Under that statute, the term “[c]hild means any
person who has not reached his eighteenth birthday.” RSA 169-C:3, V
(quotation omitted). Mother argues that this definition is unambiguous and
“does not include either an ‘unborn child’ or a ‘fetus’ within the meaning of
‘child.’” Mother also notes that RSA 169-C:3, II, “which defines an abused
child, does not include a reference to an unborn child or fetus,” see RSA 169-
C:3, II (2022), and that the legislature did “not include the word ‘fetus’ in the
entire statutory scheme of RSA [chapter] 169-C,” see RSA ch. 169-C (2022 &

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Supp. 2022). Finally, citing RSA 630:1-a, V(b)(1) (Supp. 2022), she argues that
when the legislature “intends to include a fetus in child abuse statutes, it has
done so specifically.” We note, however, that the statute Mother cites is not
explicitly a “child abuse” statute, but rather, is part of the Criminal Code.

We need not reach this issue. DCYF argues and we agree that “J.P.S.
satisfied the plain language of RSA 169-C:3, II(d)” at the time the abuse petition
was filed. Thus, we agree with DCYF that we need not decide whether a fetus
is a “child” under RSA 169-C:3, V. Accordingly, we now address the issue as
framed by DCYF: whether “a finding of abuse pursuant to RSA 169-C:3, II(d)
can be sustained based upon a mother’s prenatal substance abuse that
manifests in physical injuries to the child after birth.” Cf. In re Baby Boy
Blackshear, 736 N.E.2d 462, 464 (Ohio 2000) (disagreeing with mother’s
framing of issue and finding that “the issue is not whether a fetus is a child but
rather whether the plain language of [the child abuse statute] applies to
Lorenzo and the facts of this case”).

Answering the question posed requires us to engage in statutory
interpretation, “which presents a question of law subject to de novo review.”
In re J.S., 174 N.H. 375, 379 (2021) (quotation omitted). “We first look to the
language of the statute itself, and, if possible, construe that language according
to its plain and ordinary meaning.” Id. (quotation omitted). “We interpret
legislative intent from the statute as written and will not consider what the
legislature might have said or add language that the legislature did not see fit
to include.” Id. (quotation omitted). “Absent an ambiguity, we need not look
beyond the language of the statute to discern legislative intent.” Id. (quotation
omitted).

RSA 169-C:3 provides, in relevant part, that “[a]bused child means any
child who has been . . . [p]hysically injured by other than accidental means.”
RSA 169-C:3, II (2022) (quotation omitted). DCYF argues that “[t]he statute
includes no language requiring the injurious conduct and resulting injury to
exist concurrently.” We agree. We find the Tennessee Court of Appeals’
decision in In re Benjamin M., 310 S.W.3d 844 (Tenn. Ct. App. 2009),
instructive. There, the court noted that “abuse” was statutorily “defined to
include a child who ‘is suffering from, has sustained, or may be in immediate
danger of . . . sustaining a wound, injury, disability or physical or mental
condition caused by brutality, neglect or other actions or inactions of a
parent.’” In re Benjamin M., 310 S.W.3d at 848 (quoting Tenn. Code Ann.
§ 37–1–102(b)(1) (2005)). Similarly, the statutory definition of “severe child
abuse” referred to abuse or neglect “‘that is likely to cause great bodily harm or
death’” or “‘that in the opinion of qualified experts has caused or will
reasonably be expected to produce’” certain severe adverse outcomes. Id.
(quoting Tenn. Code Ann. § 37–1–102(21) (2005) (renumbered (23) in 2009
Supp.). The court concluded, “Obviously, the wording we have emphasized

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shows that a finding of abuse can be based on conduct that occurs at one time
and injury that occurs at another.” Id. Accordingly, the court held that “the
statutory language defining severe child abuse clearly reflects an intent that
actions before a child is born can constitute abuse to a child that is born
injured by those actions. When a child is born alive but injured, the pre-birth
timing of the actions is not dispositive.” Id. at 850-51.

Although the temporal language in RSA 169-C:3 is not as extensive as in
the statutes at issue in In re Benjamin M., we note that the pertinent portion of
RSA 169-C:3, II similarly refers to “any child who has been . . . [p]hysically
injured.” RSA 169-C:3, II (emphasis added). Thus, as was the case in In re
Baby Boy Blackshear, “[t]he statute focuses on the status of the child—not the
timing of the injury’s infliction.” In re Baby Boy Blackshear, 736 N.E.2d at 466
(Cook, J., dissenting, but agreeing with majority on this point). The portion of
the statute relevant here requires the child to have been “[p]hysically injured by
other than accidental means,” but is silent about when such non-accidental
means must or may occur. RSA 169-C:3, II(d); cf. In re Baby Boy Blackshear,
736 N.E.2d at 466 (Cook, J., dissenting, but agreeing with majority on point
cited) (noting that the applicable statute “does not require that the
parents inflict injury after birth. It merely requires that the child suffer
injury, due to an act by the parents, that harms or threatens to harm the
child’s health or welfare”).

In the instant case, the trial court found:

Dr. Jessica Clem credibly testified to J.P.S.’s condition at the
hospitals and interpreted the medical records, which all showed
physical injuries to J.P.S. which caused pain, suffering and other
problems. The evidence presented also showed that it was and is
the result of drug use by [Mother] while pregnant with J.P.S., and
the injury was not accidental.

The court also implicitly found that the physical injuries from NAS
occurred after J.P.S.’s birth, noting that “it appears that when the withdrawal
symptoms manifested, [Father] anonymously brought J.P.S. to CMC for
medical care.” This is consistent with Dr. Clem’s testimony:

Q Okay. So the illness that you're describing here today is
something that occurs some point after a child is born if they’ve
been exposed in utero to substances, correct?

A That’s correct. Typically, symptoms occur in the first three to
five days.

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 Q Exactly. And so, to your knowledge, when [J.P.S.] was born and
brought to the ER, this was essentially day 3 of his life. Is that fair
to say?

A That was what was reported, yes.

At that point, J.P.S. clearly met the definition of “child” under 169-C:3,
V. Thus, the trial court concluded: “In sum, J.P.S. is now a child who is
suffering non-accidental physical injuries that were caused by [Mother’s]
actions before delivery.” (Emphases added.) This conclusion is both supported
by the evidence and consistent with the plain language of RSA 169-C:3, II(d).
See In re Craig T., 144 N.H. at 585. Accordingly, we affirm the trial court’s
finding of “true” on the petition alleging Mother’s abuse of J.P.S.

Finally, Mother raises constitutional concerns about interpreting the
statutory definition of “child” to include a fetus. Specifically, Mother argues
that “interpreting RSA 169-C:3(V) to include an unborn fetus would violate a
parent’s right to due process and fair notice about what conduct would
jeopardize their fundamental right to familial integrity.” Because our decision
does not rest on the premise that an unborn fetus is a “child” under 169-C:3,
V, we need not address this argument.

Statutes reflect policy determinations made by the legislature. We are
bound to apply the statute as written. See, e.g., ElderTrust of Fla. v. Town of
Epsom, 154 N.H. 693, 707 (2007). The legislature is, of course, free to amend
the statutory scheme should it disagree with the result we reach today. Id.

Affirmed.

MACDONALD, C.J., and BASSETT and DONOVAN, JJ., concurred;
HANTZ MARCONI, J., concurred specially.

HANTZ MARCONI, J., concurring specially. I agree with my colleagues
that a child experiencing post-birth injury resulting from a mother’s pre-birth
actions during pregnancy can satisfy the statutory definition of an “abused
child” for the purposes of RSA 169-C:3, II(d). See RSA 169-C:3, II(d) (2022). I
foresee future cases, however, where the application of this subsection is not so
clear. For the reasons I describe below, the legislature may wish to revisit this
statute and clarify the proper application in circumstances where a mother’s
pre-birth substance misuse causes post-birth injuries to the child.

In particular, I am troubled by the notion that post-birth injury to a child
resulting from a mother’s substance misuse during pregnancy is, necessarily,
“other than accidental.” RSA 169-C:3, II(d) (defining “abused child” to include
a child who has been [p]hysically injured by other than accidental means”

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(emphasis added)). While substance misuse by a parent is rarely accidental,
there are instances where the resulting injury to the child could be considered
accidental, such as where the mother is unaware that she is pregnant. The
key words, “by other than accidental means,” establish a standard under which
courts review the nature of the action that caused the injury. “Accidental” is
defined as “happening by chance, unintentionally, or unexpectedly.” New
Oxford American Dictionary 9 (3d ed. 2010). Therefore, injuries “happening by
chance, unintentionally, or unexpectedly,” id., would not be the basis for a
finding of child abuse under RSA 169-C:3, II(d). The science of addiction,
however, raises concerns that substance misuse is not necessarily a matter of
volition, thus making it more difficult to determine whether drug use by the
mother and resulting injury to the child should be described as “accidental.”
See Charles P. O’Brien & A. Thomas McLellan, Myths About the Treatment of
Addiction, 347 The Lancet 237, 237 (1996) (“At some point after continued
repetition of voluntary drug-taking, the drug ‘user’ loses the voluntary ability to
control its use. At that point, the ‘drug misuser’ becomes ‘drug addicted’ and
there is a compulsive, often overwhelming involuntary aspect to continuing
drug use and to relapse after a period of abstinence.”). Indeed, the legislature
has recognized that substance misuse is a disease that in some instances can
warrant a different response by establishing treatment services that
acknowledge substance use disorder as a condition, and drug courts that
provide community and treatment services to certain high-risk offenders. See
RSA 172:2-a (2022) (establishing a “State Substance Use Disorder Services
System” to “provide for the scientific care, treatment, and rehabilitation of
individuals with substance use disorders”); RSA 490-G:2 (Supp. 2022)
(implementing drug courts to “address appropriately an identified substance
abuse problem”). Thus, it may be difficult to properly apply the term
“accidental” in this context.

Additionally, using the word “accidental” to delineate a standard of
behavior may lead to outcomes which run counter to public policy. For
example, medical experts “recommend treatment with methadone or
buprenorphine for pregnant people with [opioid-use disorder].” Treatment for
Opioid Use Disorder Before, During, and After Pregnancy, Ctrs. for Disease
Control & Prevention, https://www.cdc.gov/pregnancy/opioids/treatment.html
(last visited Feb. 16, 2023). But such treatment can itself cause injury to a
newborn. Id. (“[N]eonatal abstinence syndrome (NAS) is an expected condition
that can follow exposure to [medication for opioid-use disorder].”). Therefore, a
well-intentioned pregnant mother who exposes her child to addiction
medication could fall within a plain reading of the statute, because the
resulting injury did not happen “by chance, unintentionally, or unexpectedly.”
New Oxford American Dictionary 9 (3d ed. 2010) (defining “accidental”). The
lack of an exception for a pregnant mother who seeks substance abuse
treatment would discourage seeking that help. Child Protect. and Perm. v.
Y.N., 104 A.3d 244, 256 (N.J. 2014) (“[F]inding a mother liable of abuse or

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neglect for her newborn’s neonatal abstinence syndrome after the mother has
made an informed medical decision to undergo methadone maintenance
treatment will discourage women from entering detoxification programs that
will likely improve their children’s health prospects.”). Other state legislatures
that have enacted laws establishing that a mother’s pre-birth drug use can be a
basis for an abuse or neglect finding have included exceptions when the drug
use was for a medical purpose. See, e.g., Fla. Stat. Ann. § 39.01(34)(g) (West
2021); Ga. Code Ann. § 15-11-2(56) (West 2022); Minn. Stat. Ann. § 260E.03
subdiv. 15(a)(5) (West 2021). RSA 169-C:3, II(d) may not allow for a similar
exception.

Finally, the language of the statute may also extend the reach of RSA
169-C:3, II(d) to pre-birth acts beyond substance misuse. There are other
arguably non-accidental acts that can cause post-birth injury, such as
smoking or driving over the speed limit. To avoid unexpected or undesirable
outcomes, the legislature may wish to revisit the phrase “by other than
accidental means” in light of the circumstances that may surround a child’s
post-birth injury caused by pre-birth acts.

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